Kill Bill C-11 Volume 2: the notices from your ISP are coming!!!

As I wrote a couple of weeks ago, Bill C-11, The Copyright Modernization Act, has been introduced in Parliament and we are headed to a whole new regime of Copyright in this country. And I promised to have an ongoing series on the effects of the Bill on the internet. Well, two posts counts as a series, right?

After the jump, let’s explore the “notice and notice” regime imposed by the Bill. Sure that sounds boring, but what legal “regime” doesn’t? And you, Mr. or Mrs. Illegal Downloader, will want to know about this.

There is something else, however, that has not yet received the attention it deserves: the “notice and notice rules” that require all ISPs to forward notices from copyright holders to Internet users alleged to have illicitly downloaded and shared content online.

Well, he certainly got the lack of attention thing right. In the whole kerfuffle about digital locks, pretty much everything else in the Bill has been ignored. But the notice and notice regime is important, as it affects you, your privacy, probably your ISP invoice, and the relationship between copyright owners and the oligopoly of ISPs in this country. So listen up!

Here’s how the notice and notice works. An owner of a copyright may “send a notice of copyright infringement” to an ISP. The notice has to specify a bunch of crap, little details about the infringement, basically the who what where when. What the Bill does not specify is the type of infringement this applies to. So is just downloading last week’s Dexter enough? Probably!

Actually I’m being flippant, for effect as usual. The Bill does specify that the ISP getting the notice must be responsible for the “electronic location that is the subject of the claim of infringement”. I am not even sure what that means, and this is my career! Does it mean a server that is distributing content illegally? Or could it mean the IP address of an illegal downloader? I vote for both. So yes, that Dexter download will get you in trouble!

Anyway, the ISP receives the notice, and he/she/it must “without delay” forward the notice to “the person to whom the electronic location identified by the location data specified in the notice belongs”. Well that’s pretty clear! Ugh. Anyway, this is the second notice of the notice and notice regime. Simple, eh?

So what do the ISPs get for complying with the regime? Well, as long as they keep records of the notices for all of six months (I’ve had colds that last longer than six months) they get full immunity from any copyright claims on themselves. Sweet deal! Now that’s not explicit in the Bill, but it’s certainly implicit. And if the ISP does not pass along the notice to their customer? Well they can be sued for copyright infringement, but only to a maximum of $10,000. Given that my last Vidéotron bill was close to that amount, I’m not sure that’s much of a punishment.

Now you may think I’m shitting all over the regime, and in some ways I am. But it could be a lot worse. In some European countries (notably France and the U.K.), they have something euphemistically called “graduated response” but which everyone calls three strikes. In that regime, you get three notices that you’ve violated copyright, and the ISP must cut off your internet service. Yikes. In the U.S., the DMCA (Digital Millennium Copyright Act) mandates a “notice and takedown” regime, where if an ISP or search engine or anyone else hosting copyrighted material without permission (YouTube is a prime example) gets a notice, they must immediately remove the copyrighted material, and then send a notice that the material was removed. No warning, no evidence, who cares! So we’re getting off easy!

Even Michael Geist, champion of consumers in copyright matters, has supported the regime in the past. He (correctly) points out that the ISPs don’t give up the personal information of the customer, they just pass along the notice. Well, they may have to give up the personal info if a lawsuit is filed, but it is not as a matter of course.

Winseck’s article is much harsher on the regime than I am being. But he’s wrong. He speaks of the “chilling effect on free expression”, but that’s bullshit. An internet user merely gets a notice; he’s not forced to do anything about it. If he chooses, he gets his fair hearing. In the U.S. he wouldn’t. When Winseck writes that notice and notice “is stricter than the U.S. approach”, he’s wrong again, as I explained two paragraphs ago.

I live and work in the real world – there needs to be some regime for policing of copyright on the internet. Do I think ISPs get a sweet deal here? Yes. Do I think it could be much, much worse? Damn straight.

Allen, how is the situation changed from existing law? For example Canadians are being sued for downloading the Hurt Locker, the ISP must have provided the IP address and owners name etc.
Does this make it harder or easier for THE MAN to keep the people down?

steve what I didn’t mention and maybe I should have, is that the big ISPs have been doing this notice and notice thing voluntarily for years. it’s just now going to be law, and force all ISPs (including your TekSavvy’s and so forth) to do it. And as for the Hurt Locker thing, they turned over names and addresses under a court order

Does anything in the law compel the ISP to inform the CR holder of the alleged pirate’s location? Or is it just that by keeping that info on record it opens the possibility for the CR holder to get it, i.e. through a court order, from the ISP?

Pascal nothing at all. The ISP only has to pass along the notice. He does not have to tell the copyright holder anything. So that’s actually pretty good fo consumers. And yes, keeping the info for 6 months is for a potential court order

So essentially that means it’s about time to start looking for a private VPN service to anonymize my illicit downloads right?
Or is the notice just a scare tactics? I mean, what are the possible repercussions of, say, getting a notice from Videotron for having downloaded the latest Dexter episode??

I agree that for sure notices are scare tactics. The studios and music companies want to go after people distributing more than people just downloading Dexter. It doesn’t make sense to sue you for downloading Dexter, when the cost of a lawsuit can be big, and in Bill C-11 there is a maximum amount of money that can be awarded at $5000 for someone who is downloading for personal use

About Me

Allen Mendelsohn is me. I am a lawyer specializing in internet law working out of Montreal, though sometimes I do it in front of the U.S. Capitol. That should tell you what you need to know about internet law in Canada. I also warp young legal minds at the Faculty of Law at McGill.